A blog on why norms matter online

I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Thursday, August 13, 2015

A year after Wolfgang Benedek's and my book on Freedom of Expression and the Internet was published with Council of Europe Publishing we are excited to announce that the French translation which has been in the making for some time has been completed earlier this year and the book is now available to any interested francophone readers. It is very import to make the book available to non-English speakers or those who prefer content in their native French. This should ensure that our approach to Freedom of Expression online based on the protection of the European Convention on Human Rights and the jurisprudence of the Strasbourg Court can now be read in the traditional language of international diplomacy. Liberté d'expression et internet (2014)Wolfgang Benedek et Matthias C. Kettemann

It's competitively priced and available as pdf, epub, mobi - and of course in the traditional form.

2014 was
a year of transition and controversy in Europe: a new Parliament and new
Commission were constituted and Opinion
2/13 of the Court of Justice of the European Union on the EU’s accession to
the European Convention on Human Rights raised serious questions about the
coherence of and cooperation between Europe’s human rights protection regimes. Especially
in times of the socio-political conflicts that are connected to Europe’s
austerity politics, the challenges to human rights grow. It is important to
provide the policy-makers and diplomats but also researchers and citizens with cutting-edge
research into the practice of human rights protection. This is what the European
Yearbook on Human Rights 2015 sets out to do.

Across 38
contributions by 61 authors in five sections, the seventh edition of the
Yearbook explains and contextualizes key developments in human rights in Europe
and the world.

Edited
jointly by representatives of four major European human rights research, teaching
and training institutions, the Yearbook 2015 contains, as usual, a Topic of the
Year section, and covers all relevant political and legal developments in the
field of the three main organizations charged with securing human rights in
Europe: EU, Council of Europe and OSCE. A section on cross-cutting topics
concludes the Yearbook.

The
biggest news regarding institutional protection of human rights in Europe is
undoubtedly Opinion 2/13 of the Court
of Justice of the European Union which dashed the hopes of many European human
rights lawyers for a quick completion of the EU accession to the European
Convention on Human Rights. The CJEU raised a number of complicated issues
related to the autonomy of the EU’s legal order, the disputes settlement
monopoly of the CJEU, the mechanism provided for EU involvement in Strasbourg,
the prior-involvement-procedure and the problems of judicial review of
questions regarding the Common Foreign and Security Policy. This Yearbook
extensively covers the opinion in the first section, Topic of the Year.

Table of Contents
I Topics of the Year ................................................................ 25
Paul GRAGL
The Reasonableness of Jealousy: Opinion 2/13 and EU
Accession to the ECHR ............................................................................. 27
Elisabeth STEINER and Ioana RĂTESCU
The Long Way to Strasbourg – The Impact of the CJEU’s Opinion
on the EU’s Accession to the ECHR ........................................................ 51
Maria BERGER und Clara RAUCHEGGER
Opinion 2/13: Multiple Obstacles to the Accession of the EU to
the ECHR .................................................................................................... 61
II European Union .................................................................... 77
Wolfgang BENEDEK
EU Human and Fundamental Rights Action in 2014 .............................. 79
Hans-Peter FOLZ
The Court of Justice of the European Union and Human Rights in
2013-2014.................................................................................................. 105
Theodor RATHGEBER
Human Rights à la Carte: The EU at the UN Human Rights
Council in 2014......................................................................................... 125
Gosia PEARSON
Assessment of the Implementation of the EU Human Rights
Strategy and Action Plan as Regard Business and Human Rights .... 135
11

Table of Contents
Valentina CAGNIN
The Potential Role of the Horizontal Social Clause (Article 9
TFEU) on Social Rights Protection ........................................................ 143
Karin LUKAS
The EU Charter of Fundamental Rights and the European Social
Charter – an Alliance for Social Rights?................................................ 153
Ewelina TYLEC
The Influence of Economic Crisis on Fundamental Rights in the
European Union: A Step Forward or Step Backwards? ....................... 165
Moritz BIRK and Gerrit ZACH
Torture Prevention in the EU – Many Actors, Few Outcomes? ........... 175
Grazia REDOLFI
European Union’s Attitude Towards Reproductive Rights: Clear
Policy or Double Standards Approach ................................................. 189
Denise VENTURI
The Body as an Instrument of Border Control: Remarks on Age
Assessment for Unaccompanied Migrant Children ............................. 201
Rocío ALAMILLOS SÁNCHEZ
EU Sanctions Policy: A New Human Rights Tool? The Case of Belarus ..................................................................................................... 213
Nicolas HACHEZ and Jan WOUTERS
Introducing FRAME: A Large-Scale Research Project on the
European Union and Human Rights ...................................................... 227
Katharina HÄUSLER and Alexandra TIMMER
Human Rights, Democracy and Rule of Law in EU External
Action: Conceptualization and Practice ............................................... 231
Balázs MAJTÉNYI
The Nation’s Will as Trump in the Hungarian Fundamental Law ........ 247
Felipe GÓMEZ ISA and María NAGORE CASAS
EU Member States Under the Universal Periodic Review of the
Human Rights Council: Achievements and Challenges ...................... 261

Carolina PAVESE, Jan WOUTERS and Katrien MEUWISSEN

The European Union and Brazil in the Quest for the Global
Promotion of Human Rights: Prospects for a Strategic
Partnership .............................................................................................. 279
Viljam ENGSTRÖM and Mikaela HEIKKILÄ
Lisbonising Back and Forth? Strategic Planning and
Fundamental Rights in the AFSJ............................................................ 295
Veronika APOSTOLOVSKI, Isabella MEIER, Markus MÖSTL, Klaus STARL
and Maddalena VIVONA
Measuring Human Rights in EU Practice: Realities and
Requirements ........................................................................................... 307
III Council of Europe .............................................................. 317
Brigitte OHMS, Dominik HAIDER, Elisabeth HANDL-PETZ, Martina LAIS
and Sebastian SCHOLZ
The Jurisprudence of the European Court of Human Rights in
2014: A Year of Consolidation ................................................................ 319
Amalie BANG
Recent Developments in Whistleblower Protection in Europe ........... 343
Jonas GRIMHEDEN and Gabriel N. TOGGENBURG
Fundamental Rights in EU Criminal Justice Instruments: How to
Best Make the Glass Slipper Fit? ........................................................... 355
Adina PORTARU
The “Rights and Freedoms of Others” vs. Religious
Manifestations: Who Wins at the ECtHR? ............................................. 367
Zane RATNIECE and Kushtrim ISTREFI
The Limits of the Strasbourg Court’s Two-Level Harmonization
Approach vis-à-vis SC Resolutions in Al-Dulimi .................................. 379
Philip CZECH
European Human Rights in International Military Operations............. 391
Sarah LAMBRECHT
The Brexit Scenario: Potential Consequences of a Withdrawal of
the UK from the European Convention on Human Rights .................. 407

IV OSCE.................................................................................... 421
Manfred NOWAK
Torture, Enforced Disappearances and Extrajudicial Killings in
the OSCE Region ..................................................................................... 423
Eva Katinka SCHMIDT and Vasily VASHCHANKA
Judicial Performance Evaluation and Judicial Independence:
International Standards for an Appropriate Balance............................ 435
Irina URUMOVA
The Role of Social Inclusion in Preventing Victimization: What
We Know and What We Don’t Know ...................................................... 445
Lucile SENGLER
Foreign Terrorist Fighters: A Human Rights Perspective.................... 453
Martina ORLANDI
Wartime Sexual Violence: The Route to Accountability Between
International Justice and Political Commitments ................................ 467
Kateryna RYABIKO and Marcin WALECKI
A Right to Political Participation Beyond Elections ............................. 479
Andrei RICHTER
The Relationship between Freedom of Expression and the Ban
on Propaganda for War ........................................................................... 489
V Cross-Cutting Issues........................................................... 505
Klaus STARL, Veronika APOSTOLOVSKI and Ingrid NICOLETTI
Human Rights Education for the Judiciary: An Assessment of a
Decade of Training Experience ............................................................. 507
Tessa SCHREMPF
An Economy to Feed (on) Human Beings? Human Rights and the
Responsibility to Counteract .................................................................. 517
Patrick HARRIS
Prisoners: Disenfranchised with Dignity? Searching the Legal
and the Theoretical to Find the Cure for Europe’s Ailing Right to
Vote ........................................................................................................... 533

In a blog post on the Coalition's site, which I am reproducing below, I argue that the influence has also been substantial for the most recent national multi-stakeholder effort to frame the role of human rights online (and Internet governance).

"On 28 July 2015, Laura Boldrini, the speaker of Italy’s House of Deputies announced the publication of Italian Declaration of Internet Rights. She calledit the “first time that a parliament produces a declaration on Internet rights of constitutional inspiration and international scope”. Drawn up in a multistakeholder process the drafting phase also included multiple drafts, the last of which was also discussed on the IRP list in March of this year.

Thestudy commission behind the Declaration was led by Prof. Stefano Rodotà and included experts such as Juan Carlos De Martin, co-founder and co-director of the Nexa Center for Internet & Society (read more on the processhere). Though the Declaration is an impressive document on its own, Prof. De Martin confirmed that the Commission’s first step was to synthesize “previous efforts”. He especially highlighted the importance of the IRPC’sCharter of Human Rights and Principles of the Internet, as being “the most important and mature” normative efforts towards stratifying human rights on the Internet.“After one year of work, a 5-month public consultation and 46 hearings, the study commission has shared with the international community a potential blueprint for an Internet Constitution”, Professor de Martin explains. “As private and public powers increase their presence in our common digital space we urgently need to assert and protect the rights of citizens online to preserve both democracy and freedom,” he adds.

Not only was the IRPC Charter a source of inspiration for the Italian Declaration, but both documents share similar approaches to human rights and their role in furthering a people-centred and sustainable information society. Charter and Declaration also transcend the artificial separation of social and economic and civil and political rights.

In particular, the Italian Declaration reaffirms that all fundamental rights apply offline just as online (Art. 1) and that every person has a right to Internet access (Art. 2). Innovative codifications include Art. 6. on the right to informational self-determination and Art. 9 on the right to be forgotten. Art. 14 gives a nod to the international dimension of protecting human rights online by providing that “Internet rules” on all levels need to be human rights-sensitive.What is also striking is the holistic focus on human rights and the centrality of the right to access. Article 1, para. 1., cleverly incorporates existing human rights law by referencing the UDHR, the EU’s Fundamental Rights Charter, “national constitutions and other relevant international declaration”. These “shall be protected on the Internet”. This allows the authors to refrain from reiterating the rights and allows for certain flexibility, but does leave some normative uncertainty as to the concrete rights referred to. There are, after all a lot of “relevant international declaration”, especially if you count, as you should, those by stakeholders other than states, including the IRPC’s Charter.

But the Commission has chosen to take a different normative route focusing on new rights (informational self-determination) and Internet-related concepts (net neutrality). Its starting point, however, is alocus classicus: access. The Declaration underlines, in Art. 2, para. 1, that access to the Internet is a “fundamental right of all persons and a condition for their individual and social development”. This is in line with a broader trend on both the international and the European level away from the consideration of freedom of expression and privacy asüber-rights on the Internet and towards the realization that all human rights are interdependent, interrelated and mutually reinforcing – offline just as online.

Indeed, being able to access the Internet – and Internet content – is an essential condition for personal and social development, not only for the expression of one’s views. Threats to access are threats not only to freedom of expression, but rather to the whole gamut of human rights. Art. 2., para. 2, provides that all persons “shall have the same right to access the Internet on equal terms, using appropriate and up‐to‐date technologies that remove all economic and social barriers.” Though it is unclear to me whether it primarily technologies that remove social barriers. Isn’t it rather social barriers, such as poverty, that impede access to technologies?

We need social change to ensure that digital divides to not continue to broaden – and, admittedly, technology can help in that. And more importantly, in the usage of technology, poverty or minority status or membership in a disadvantaged group must not impede access. This thought also carries Art. 3, para. 3, of the Declaration: “The fundamental right to Internet access must be ensured with respect to its substantive prerequisites, not only as the mere possibility of connecting to the Internet.” Access to the Internet and access to Internet content go hand in hand. The Italian Declration on Internet Rights is a helpful reminder."